Notes on the Nuclear Option -- Part V

by Kagro X

What is the procedural force of Bill Frist's unilateral refusal to acquiesce to Senate rules? Can he turn back the clock on a Senate that has otherwise agreed to proceed under the existing rules? Does it mean anything to reserve the right to propose rules changes under a method only theoretically available at the beginning of a new Congress, for consideration mid-session? And why reserve the right at all, when, if your theory is correct, you needn't change the Standing Rules at all?

In Part IV, we noted that the last time Senators attempted to exercise their right to extend the window of opportunity theoretically presented by the convening of a new Congress, in 1975, the moving Senators secured an unanimous consent request guaranteeing their ability to do so. Frist didn't bother trying.

Republicans, naturally, say such a protection is unnecessary. But watch the logic here employed by Todd Gaziano, the director of the Center for Legal and Judicial Studies at the Heritage Foundation, in a comment in The Hill's January 19th coverage:

Gaziano said that Democrats lost their chance to rebut Frist’s refusal to accept the rules of the previous Congress by not objecting to his statement on the floor. He said that Democrats now have a strong incentive to negotiate with Frist on crafting a new filibuster rule that exempts judicial nominees from stalling. Otherwise, Democrats would not have the right to filibuster legislation they oppose, such as Bush’s energy bill, he said.

“By their silence they have acquiesced in a way to Frist’s non-acquiescence,” he said. “I think that every senator wants a legislative filibuster. … I think both sides should come together to craft an acceptable legislative filibuster.”

"By their silence they have acquiesced... to Frist's non-acquiescence." It's an interesting theory, but if it wasn't for the fact that Frist and Cheney have no intention of abiding by Senate precedent, I'd say I'd have to agree with the Democratic Senate aide quoted later in the article:

Senior Democratic Senate aides, however, dismiss this interpretation as absurd. One aide said Frist’s statement is “definitely meaningless as far as a parliamentary standpoint.”

The Democratic aide argued that the Senate, unlike the House, is a continuing body and that the rules of the previous session carry over unless “action is taken otherwise.”

Indeed, this was the point made by Sen. Dick Durbin (D-IL) two days later, in his comments on Frist's action:

Finally, I wish to note the majority leader's surprising rejection of the longstanding tradition of the Senate as a continuous body. In his statement, he said that ``I do not acquiesce to carrying over all the rules from the last Congress'' and he specifically named Rule 22 as the rule he objected to. This is the rule that permits 41 Members of the Senate to prevent a vote on any measure, motion, or other matter pending before the Senate.

All of us who have served in the House and the Senate know that one of the most basic differences between our chamber and the House is that the Senate is a continuing body and the House is not. In other words, the Senate does not have to reorganize itself each new Congress by adopting new rules and electing new leaders. The House, on the other hand, must do so.

What exactly does it mean to be “a continuing body?” The above-quoted Democratic Senate staffer has a good working definition: it means that the rules of a previous session carry over unless “action is taken otherwise.” But isn’t that then a direct challenge to the notion that the Senate, at the start of a new Congress, operates for some time under general parliamentary rules? Wouldn’t a truly continuous body never have need (nor opportunity) to resort to general parliamentary rules, since the old rules continue in operation?

That’s how Senate Rule V would have it: "The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules."

Rule V, part of a 1959 compromise on cloture reform engineered by Lyndon Johnson, certainly appears on its face to settle the issue. But remember, Republican proponents of the nuclear option claim that their right to change the rules in mid-game stems from their theory that there are no rules unless the current majority says there are.

In that respect, today’s nuclear option proponents go beyond the Nixon pronouncements on the subject, which, while voicing support for the validity of the theory which holds that the Senate may change its rules by majority vote at the beginning of a new Congress, also were careful to restate the fact that the Senate was a continuing body.

Nixon’s 1959 reiteration of his earlier opinion brings us back to the “general parliamentary rule” theory:

In the opinion of the Chair … the rules of the Senate continue from session to session until the Senate, at the beginning of a session indicates its will to the contrary.

But it was Nixon’s first such opinion , in 1957, that instructs us as to the constitutional nature of the continuing body theory:

The constitutional provision under which only one-third of the Senate membership is changed by election in each Congress can only be construed to indicate the intent of the framers that the Senate should be a continuing parliamentary body for at least some purposes.

How can the constitutional right of the Senate to make its own rules and the constitutional nature of the continuing body theory be reconciled? Nixon’s theory was that the window of opportunity that he claimed existed at the beginning of a new Congress provided the necessary release valve. At that time, the Senate was unbound by any prior rules it did not either affirmatively readopt, or acquiesce to by declining to change them. The relevant part of the Nixon ruling I noted in Part III said:

At the beginning of a session in a newly elected Congress, the Senate can indicate its will in regard to its rules in one of three ways:

First. It can proceed to conduct its business under the Senate rules which were in effect in the previous Congress and thereby indicate by acquiescence that those rules continue in effect. This has been the practice in the past.

Second. It can vote negatively when a motion is made to adopt new rules and by such action indicate approval of the previous rule.

Third. It can vote affirmatively to proceed with the adoption of new rules.

It’s Frist’s claim that his unilateral refusal to acquiesce to the carrying over of the rules is the functional equivalent of turning back the clock to the beginning of the session. On the other hand, the relevant question will be what the (non-) action of the other 99 Senators means. Have they engaged in the functional equivalent of Nixon’s first option: indicating acquiescence that the rules continue in effect? Or have they engaged in what  Gaziano claims: an acquiescence to Frist’s non-acquiescence?

Maybe that’s a problem inherent in trying to assign meaning to the silence of a Senator.

We’ll see how the contest of the one versus the ninety-nine goes in the battle to bring “majoritarian rule” to the Senate.

Comments

[Gingerman]

This series is just excellent work. I wanted to thank you for putting the effort and research. I have a couple of further tidbits to think about. Being a litigator, I of course think about suing people when they pull shenanigans such as those being batted around in the Munich beer hall that the Senate has become, and thus I like to poke around for judicial authority with which to arm for litigation. And, lo and behold, a cursory trip to the books reveals that not only is it the Supreme Court's view that the Seante is a "continuing body" as a matter of constitutional law, see McGrain v. Daugherty 273 U.S. 135, 182(1927), but there also is authority for the proposition that the Senate cannot derogate from its rules just because a majority decides that they are an inconvenient obstacle to what the majority would like to achieve: In United States v. Smith, 286 U.S. 6 (1932), the Senate confirmed a presidential appointment to an agency, and then, after tendering the confirmation to the President, reconsidered and tried to take the confirmation back (having mustered a majority vote against the appointment in the interim). The Court said no way, because the initial confirmation vote was conducted according to the Senate's rules, and the rules did not provide for a revocation of a confirmation vote. I think this precedent significant not only because it supports the sensible proposition that the Senate cannot simply make up the rules as it goes along, but it also suggests that a purported act of the Senate that is contended to violate those rules can be challenged in court.

[Kagro X]

Thanks for the kind words and the mercy comment, Gingerman. And also for kicking off the research for what's likely to become Part VII or VIII of the series, unless I am unable by tonight to remember what it was I intended to make Part VI.

We'll definitely need to look at the more solid cases, along with the more recent and fringe-y filings by Judicial Watch, claiming an enforceable right (as frequent litigants) to a full roster on the federal bench.

[Iris]

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